1 george mason school of law contracts ii specific performance f.h. buckley fbuckley@gmu.edu
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George Mason School of Law
Contracts II
Specific Performance
F.H. Buckley
fbuckley@gmu.edu
When might damages not suffice?
Things of idiosyncratic value to a purchaser
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When do damages not suffice?
Things of idiosyncratic value to a purchaser Land: Lucy v. Zehmer
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“Tis the only thing worth fighting for, worth dying for”
When do damages not suffice?
Things of idiosyncratic value to a purchaser Heirlooms
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The Pusey Horn
When do damages not suffice?
Things of idiosyncratic value to a purchaser Beyond that? Sedmak
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1978 Corvette Pace Car
When do damages not suffice?
Things of idiosyncratic value to a purchaser Beyond that? Sedmak
Deposit paid, sale at MSRP with options After the changes, dealer to provide a
“contract”
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When do damages not suffice?
Things of idiosyncratic value to a purchaser Beyond that? Sedmak
Was there a contract?
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When do damages not suffice?
Things of idiosyncratic value to a purchaser Beyond that? Sedmak
Was there a contract? Statute of Frauds
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When do damages not suffice?
Things of idiosyncratic value to a purchaser Beyond that? Sedmak
Specific Performance UCC § 2-716(1): “unique goods or in other proper
circumstances” Comment 1
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When do damages not suffice?
Why “proper circumstances” in Sedmak?
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When do damages not suffice?
Why “proper circumstances” in Sedmak? Limited production and availability
problems Rise in price?
Why not monetary damages for this?
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When do damages not suffice?: Klein v. Pepsico
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The Law School’s Gulfstream G-IIThe “Efficient Breach”
When do damages not suffice?
Klein v. Pepsico
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Donald Kendall pours Nikita Krushschev a pepsias Richard Nixon observes, 1959
When do damages not suffice?
Klein v. Pepsico Was the plane unique? What about the price increase?
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When do damages not suffice?
Klein v. Pepsico Was the plane unique? What about the price increase?
Could money damages make the Π whole with respect to the price increase?
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When do damages not suffice?
Klein v. Pepsico Was the plane unique? What about the price increase?
Could money damages make the Π whole with respect to the price increase?
Would they make him whole under UCC §§ 2-712, 2-715?
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When do damages not suffice?
Klein v. Pepsico Was the plane unique? What about the price increase?
Who bears the risk of a cover? Is it solely the buyer? Does the seller have an incentive to “cover”?
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When do damages not suffice?
Klein v. Pepsico Was the plane unique? What about the price increase?
Who bears the risk of a cover? Is it solely the buyer? Does the seller have an incentive to “cover”? Do damages systematically undercompensate?
The American rule of costs
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When do damages not suffice?
Klein v. Pepsico Was the plane unique? What about the price increase?
Who bears the risk of a cover? Is it solely the buyer? Does the seller have an incentive to “cover”? Do damages systematically undercompensate? Does that explain why SP is sought?
Or denied?
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When do damages not suffice?
Triple A Baseball Club
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The Maine Phillies
When do damages not suffice?
Triple A Baseball Club
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Doug Jones, 303 saves in the majors
When do damages not suffice?
Monetary Specific Performance: Bander v. Grossman
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Aston Martin DB-5
When do damages not suffice?
Monetary Specific Performance: Bander v. Grossman Purchase price of $40,000 Price at breach of $60,000 Resale for $225,000 Price at trial of $80,000
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Aston Martin DB-5
When do damages not suffice?
Monetary Specific Performance: Bander v. Grossman Purchase price of $40,000 Price at breach of $60,000 Resale for $225,000 Price at trial of $80,000 Damages of $20,000 awarded
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Aston Martin DB-5
When do damages not suffice?
Marketing Contracts: Playgirl
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Centerfold Winner Sen. Scott Brown (R. MA)
When do damages not suffice?
Marketing Contracts: Playgirl Is it indeed the case that “Playgirl alone and
uniquely provides an advertising audience composed of young, malleable and affluent females”?
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When do damages not suffice?
Marketing Contracts: Playgirl Is it indeed the case that “Playgirl alone and
uniquely provides an advertising audience composed of young, malleable and affluent females”?
The Court: We think there are a lot of other magazines that cater to this market
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When might damages suffice?
When damages as wholly compensatory, SP might overcompensate Jacob and Youngs v. Kent: what result if SP
had been available?
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When might damages suffice?
When damages as wholly compensatory, SP might overcompensate
Costs of judicial supervision of performance
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When might damages suffice?
When damages as wholly compensatory, SP might overcompensate
Costs of judicial supervision of performance
Interference with liberty interests
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When do damages not suffice?
Personal Services
http://www.youtube.com/watch?v=iXw9olWJ0Ak
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Anita Baker
When do damages not suffice? Personal Services
No SP, no injunction Damages remedy against Warner
http://www.youtube.com/watch?v=iXw9olWJ0Ak
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George Mason School of Law
Contracts II
Reliance Damages
F.H. Buckley
fbuckley@gmu.edu
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